State v. Lenza

• Court: Missouri Court of Appeals
• Writing for the Court: STEWART; STEPHAN, P. J., and KELLY
• Citation: State v. Lenza, 582 S.W.2d 703 (Mo. App. 1979)
• Decision Date: 24 April 1979
• Docket Number: No. 39114,39114
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael Lee LENZA, Defendant-Appellant.

Page 703

582 S.W.2d 703

STATE of Missouri, Plaintiff-Respondent, v. Michael Lee LENZA, Defendant-Appellant.

No. 39114.

Missouri Court of Appeals, Eastern District, Division Two.

April 24, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 15, 1979.

Application to Transfer Denied July 17, 1979.

Donald L. Wolff and Paul J. Passanante, Clayton, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jeff W. Schaeperkoetter, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., James Hartenbach, Asst. Pros. Atty., Julius D. Cosentino, Clayton, for plaintiff-respondent.

STEWART, Judge.

Defendant, Michael Lee Lenza, was convicted of the crime of murder in the second degree as a result of the death of his former wife, Tina Lenza. The jury fixed his punishment at life imprisonment. Defendant appeals from the judgment entered upon the jury verdict. We affirm.

Defendant presents eleven issues for our consideration. We will not consider the points in the order in the brief but will sometimes refer to them as numbered in the brief. We consider first defendant's contention that "The State failed to make a submissible case in that it was not shown that the alleged victim died as a result of the criminal agency of the appellant."

In determining this issue we view the evidence in the light most favorable to the verdict. We accept as true all of the evidence, circumstantial and direct, tending to prove defendant's guilt, together with all favorable inferences that can reasonably be drawn from that evidence and disregard all evidence and inferences to the contrary. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977). ¹

With these principles in mind we review the facts pertinent to this issue. The facts necessary to the determination to other issues will be related as those issues are discussed.

Tina Lenza died on Friday, December 12, 1975. Her body was found in a bathtub on the second floor of the home of her parents where she was living. The tub was full and Tina's head was under the water face up.

An autopsy revealed a dark red hemorrhage or contusion to the right side of the head in temporal parietal area; a three inch vertical fracture to the back of the skull in the left occipital area. There were also numerous contusions on the inferior surface of the brain along the base and on the cerebellum. The fracture was most likely caused by the head striking something relatively flat while moving with a fair amount of force rather than something striking the head. The injury was consistent with the head striking a floor or the rounded surface of a bath tub. The injury would be more likely to occur if one were to fall without breaking the fall. There was no evidence that Tina had tried to break a fall. There were no bruises to her elbows, arms or hands. The contusion to the right side of the head resulted from a much less severe force than the force that caused the skull fracture.

The autopsy also revealed edema fluid and congestion in the lower lobes of the lungs. The tracheal-bronchial tree was partially filled and contained a bloody mucous. It was the opinion of the medical examiner that the primary cause of death was drowning.

The defendant and Tina Lenza had been married and living in Columbia. They had two children, one of early school age and the other eight months of age. They returned to St. Louis prior to April of 1975 after marital problems developed. Household goods and personal items were brought to the home of Tina's parents, Robert and Beverly Wolff, and stored in the basement. Defendant had been forbidden to enter the Wolff home. When he came to pick up the children he waited on the porch. During the summer Tina went through the items that were stored in the basement and set some things belonging to defendant out on the front porch where he picked them up.

A decree dissolving the marriage of Tina and defendant had been entered on November 14, 1975. A stipulation had also been filed. Tina was granted primary custody of the children and defendant was given some temporary custody of the children. The grant of temporary custody did not include Fridays. There was no provision giving him any of the household goods.

On Friday, December 12, Tina had planned to take her step-grandfather, Kenneth Nelson, Christmas shopping. Mrs. Wolff and the Lenza children were going to the Nelson home so that Mrs. Wolff could stay with Mrs. Nelson, her invalid mother, and watch the children while Tina and Mr Nelson were shopping. Mr. Nelson spoke with Tina by telephone between 10:30 and 11:00 o'clock A.M. and was advised that Tina was waiting for her mother to return home; that they would "be right down."

Mrs. Wolff had a job interview at 10:00 o'clock that morning. From the job interview she went to the home of a friend and neighbor, Mrs. Gravatt. She arrived there about 10:45 A.M. When Mrs. Wolff noticed it was 11:35 she hurried to leave because she was to pick up Tina and the children and be at the Nelson's around noon. Mrs. Wolff was in a good mood as she backed out of the driveway and headed home. The Wolff home was just a few minutes away. Mrs. Wolff was wearing her leather coat.

About 10:20 A.M. defendant called his employer stating that he was sick and would not report for work. Because of shortage of help the supervisor had one of the other employees call defendant at home to see if he could possibly come to work. Defendant's brother answered and said that defendant was not home. It was payday but defendant did not pick up his check.

Alicia, Tina's sister was living at home. She was leaving for work at 7:45 A.M. when she last saw Tina alive. Tina and Mrs. Wolff were seated at the table in the family room. Tina had thick long black hair which went below her waist. She washed her hair every two or three days. It would take her about two hours to dry her hair using an electric dryer. She had washed her hair the night before and it was done up in a bun on top of her head.

Alicia returned home for lunch at about 11:50 A.M. She parked her car in front of the house and went along side of the house to the rear. As she started up the stairs to the back porch she saw defendant inside the house. He was near the rear door rolling a barrel toward the open door. This barrel was a cardboard or fiber drum about 36 in height and 22 in diameter. It had a steel lid with a rim or ring that locked the lid onto the barrel. Defendant rolled the barrel out the door. When he saw Alicia he said "Hi". He struggled in lifting the barrel as if it was heavy. He then came down the steps carrying the barrel. He lost his balance but held onto the barrel and regained his balance. As he got to the bottom of the stairs Alicia went up the stairs and into the house. She went through the house looking for someone. When she got into the living room at the stairway leading to the second floor she heard the shower running. She went to the bathroom on the second floor. The bathroom door was standing open, the shower door was closed and the shower was running. She called for Tina and when there was no response she opened the shower door and saw her sister, apparently dead. Tina was nude, her hair was down covering her face, which was facing upward under the water. It was later learned that Tina was wearing earrings and had a ring on her hand. Alicia turned the water off and noticed that it was cool. She then closed the shower door and ran to a next door neighbor for help. As she was returning with the neighbor she saw defendant get into his van that was parked in the alley. The alley has only one exit and the van was faced toward the exit.

Tina's body was removed by firemen who made attempts at resuscitation. The tub was then one-half to three-quarters full of water. A wash cloth had been forced into the drain. The water was clear and the soap dish was dry.

A search of the house revealed that the glass panel in the rear door nearest the knob and lock had been broken out. The glass was found in a trash bag. The baby was asleep in the dining room in a porta-crib with the sides down. His fresh clothing was laid out on the table in the family room. The baby's diaper bag was on the couch in the living room. The leather coat that Mrs. Wolff had been wearing when she left Mrs. Gravatt was also on the couch. The light next to the chair in the family room and the television set were on and Tina's knitting was on a table next to the chair. Tina's glasses were found on the floor under the television set. A key to the apartment the Lenza's had occupied in Columbia, Missouri was also found on the floor of the family room.

The clothes Tina had been wearing in the early morning were found on the bed in her bedroom on the second floor. Her shoes, socks and underwear were found on the bathroom floor. There were some clean clothes on the hamper in the bathroom.

A search of the basement revealed that fruit jars that had been stored in the barrel that defendant carried out were stacked in the basement. None of the household goods stored in the basement had been disturbed nor were any other objects missing from the Wolff household.

The defendant was arrested in Columbia, Missouri.

Neither Mrs. Wolff nor the barrel have been seen since the date of Tina's death.

Defendant did not take the stand in his own behalf.

Where, as here, there are no eye witnesses and the State must rely on circumstantial evidence, the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt. They must also be inconsistent with and exclude every reasonable hypotheses of his innocence. The circumstances do not have to be absolutely conclusive of guilt nor do they have to demonstrate the impossibility of innocence. The existence of other possible hypotheses is not sufficient to remove the case from the jury. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977).

Defendant, relying primarily on State v....